See comments interspered below. Talking about U.S. law here - in other
countries your mileage may vary.
This is not legal advice, no attorney-client relationship established, etc.
etc.
From: Mike Bilow <[EMAIL PROTECTED]>
To: Raul Miller <[EMAIL PROTECTED]>
CC: Peter Makholm <[EMAIL PROTECTED]>, debian-legal@lists.debian.org
Subject: Re: complete clone of the debian website
Date: Fri, 2 Jun 2000 12:47:31 -0400 (EDT)
On 2000-06-02 at 12:07 -0400, Raul Miller wrote:
> On Fri, Jun 02, 2000 at 12:01:23PM -0400, Mike Bilow wrote:
> > Yes, but it is not clear to me that this is a violation of the OPL.
The
> > problem is that the OPL is overwhelmingly concerned with, and written
> > subject to the assumption that, it is protecting something equivalent
to a
> > book. This means that the main thrust of the protected material is
the
> > words and the _relevant_ illustrations.
>
> The exact significance of this interpretation depends on the
> technology used to display the text.
>
> For example, hit "view source" under netscape, and you'll
> see some rather interesting words.
I recognize your point, but there is enormous uncertainty whether HTML
source is subject to copyright protection at all, as distinct from
rendered HTML. The problem is that copyright protects, by
I don't think I would be as pessimistic. To this non-expert, HTML source
really seems no different than text in a book or other kinds of source code.
There is nothing in the law that I am aware of that would per se exclude
HTML source (assuming that it fits within the traditional definition of
"literary" work wherein computer code is categorized). Of course, the HTML
source must meet the threshold test of originality and be more than de
minimis in order to be copyrightable - and this is where certain HTML source
may fail. Remember, you have to look at the work as a whole - you can't
break a work into pieces and say "hey that's not original" otherwise nothing
would obtain copyright protection.
Although not determinative, the Copyright Office will register the work(s)
that comprise a web site/page. See
http://www.loc.gov/copyright/circs/circ66.pdf
definition, an
actual expression of an idea. This presupposes at least the possibility
of communicating the work to another person.
No requirement, in the law that I know, of a "possibility of communicating
the work to another person." In any event, I would think most HTML
programmers could "read" an HTML document. And certainly the file can be
communicated in the transmittal sense.
Is a web site most similar to a literary work, in which the words are
most important? Or is a web site most similar to a visual work, in which
the overall appearance is most important? Or is a web site most similar
to a computer program, in which the raw content is most important?
I think this analysis is relevant to determining if there may be different
types of copyright protection here. I would suggest that the HTML source is
a "literary" work and that the screen output is a "pictorial" and/or
"graphic" work. Or otherwise the HTML source/output could comprise in
certain cases an "audiovisual" work. Each of these works could form the
basis of a copyright.
The OPL clearly assumes that it is being applied to a literary work, so I
think that Debian is stuck with this assumption once it has chosen to
license its web site under the OPL. This is not unreasonable, since the
artistic components of the Debian web site, while distinctive (in the
trademark sense), are by no means central to the purpose of the site.
I have not carefully analyzed the OPL but I agree that it leans toward
"literary" works. If indeed it is only restricted to "literary" works then
perhaps other copyright works are not licensed e.g. the "audiovisual" or
"pictorial"/"graphic" works that make up the Debian site. Perhaps an implied
license (of unknown scope) applies to those works which implied license may
not include the right to make derivative works.
Insofar as a web site is a literary work, the unrendered parts of the HTML
source are something like the binding and paper size used in a book:
regardless of how distinctive and unusual they may be, such parts can
never be protected by copyright.
I think where part of this analysis goes the wrong way is that it ignores
that a creation - a web site page - can contain different types of
copyrightable works. Consider the book that contains text as well as
illustrations. Copyright inheres in both the "literary" work as well as the
"pictorial" and "graphic" works contained in the book. Similarly, I think
that copyright inheres in the source itself as well as in its rendered form
and so there are copyright works here at different levels.
Looking only to the HTML source code itself, I would consider it like any
other collection of text or other source code capable of copyright
protection. If someone has made a direct or substantially similar copy (by
looking at the original copy and the alleged infringing copy as whole), then
I think there would be infringement (assuming the HTML source passes the
originality and de minimis tests). That the tags act to cause a browser to
format text in a defined way is no different I think than words on a page
cause the mind to understand or that commands like if-then or do-while cause
a computer to cause an end result. That issue I don't think is relevant when
the two copies appear identical or substantially similar. In this case, to a
lay person, the Debian and API HTML as a whole look awfully similar
(notwithstanding that text was replaced).
I just don't think the analogy of HTML tags to "binding and paper size"
holds up primarily because binding and paper size do not involve expression;
rather they are physical attributes of the object containing the copyright
work. Whether HTML tags are equivalent to layout and topography I would
argue that they are not because to me HTML tags are like the if-then and
do-while statements of traditional source code which together with
parameters, names, etc. form the final source code. A closer question to me
(i.e. whether it is original) would be whether the layout and font type/size
of the HTML source itself or the font type/size of the rendered HTML (I
would think the layout is original because it is the nub of the expression
contained on the Debian home page) is protectable but I don't think you need
to get to that issue with the Debian/API HTML.
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